Publications – Emmett Clinic

Amicus Briefs CCS Clean Air Act Greenhouse Gas Emissions Performance Standards Technology

West Virginia v. EPA (D.C. Cir. No. 24-1120)

On October 18, 2024, the Clinic filed an amicus brief on behalf of Rachel Rothschild, Assistant Professor at the University of Michigan Law School and scholar of environmental law, history, and policy, in support of EPA in a case challenging EPA’s performance standards for greenhouse gas emissions from power plants. The brief draws key parallels and meaningful contrasts between emissions rules EPA promulgated in the 1970s, which considered the deployment of sulfur scrubber technology, and the standards currently under review, which consider the deployment of carbon capture and sequestration (CCS) technology. The brief explains that, despite substantial industry resistance and associated litigation, EPA’s 1970s regulations anticipating the use of sulfur scrubbers facilitated the widespread deployment of sulfur scrubber technology and eventual elimination of acid rain in the United States. The brief articulates why the standards currently under review stand on an even firmer technical footing.

Amicus Briefs Clean Air Act NAAQS Ozone Public Health

Utah v. EPA (D.C. Circuit Nos. 23-1157 et al.)

On June 24, 2024, the Clinic filed an amicus brief on behalf of the American Thoracic Society and American Lung Association in support of EPA’s Good Neighbor Plan for 2015 Ozone NAAQS. Our brief explained the short- and long-term effects of ozone pollution on respiratory health. The brief also addressed arguments advanced by amici in support of petitioners, who argued that recent improvements in air quality negate the importance of the Good Neighbor Plan. Here, we relied on research collected by American Lung to explain that the improvements are not uniform, and that the populations most susceptible to respiratory harms from ozone-pollution are oftentimes those most likely to live in regions that experience elevated ozone levels.

Amicus Briefs CCS Clean Air Act Greenhouse Gas Emissions Performance Standards Technology

West Virginia v. EPA (D.C. Circuit Nos. 24-1120 et al.)

On June 11, 2024, the Clinic filed an amicus brief on behalf of Professor Rachel Rothschild, a scholar of environmental law, history, and policy at the University of Michigan Law School. Petitioners in this case challenge EPA’s rule setting new source performance standards for greenhouse gas emissions for power plants. When we filed our brief, the Court was considering petitioners’ motions for a stay pending resolution of the case on the merits. The Clinic’s amicus brief in support of the government’s opposition to the stay motions drew on Professor Rothschild’s book, Poisonous Skies: Acid Rain and the Globalization of Pollution (2019), which examines the history of pollution control technologies and their relationship to the government regulation of sulfur dioxide beginning in the 1970s. The brief explained that the Clean Air Act is a technology-forcing statute and that, just as EPA made reasonable projections about the distribution of sulfur dioxide scrubbers in the 1970s, it had once again made reasonable projections about the distribution of carbon capture and sequestration technologies in the challenged rule. Thus, the brief argued, petitioners’ claims were unlikely to succeed on the merits and the stay motions should be denied. The D.C. Circuit denied the stay motion on July 19, 2024.

Amicus Briefs EFSB Energy Justice Environmental Justice

Conservation Law Foundation and Greenroots, Inc. v. Energy Facilities Siting Board (Mass. SJC No. SJC-13521)

On April 15, 2024, the Clinic filed an amicus brief on behalf of the Union of Concerned Scientists in a case challenging a Massachusetts Energy Facilities Siting Board decision to grant a certificate authorizing construction of an electrical substation in Eagle Hill, Boston, an environmental justice community. The Clinic’s brief discussed the importance of centering environmental and energy justice in the Commonwealth and highlighted the recent passage of the “Roadmap Act,” which codifies the Commonwealth’s commitment to environmental justice principles. The brief also explained why the Eagle Hill community deserved the Roadmap Act’s full protections and highlighted opportunities for future improvements in Siting Board proceedings.

Amicus Briefs ERISA ESG Fiduciaries

Utah v. Su (Fifth Cir. No. 23-11097)

On March 28, 2024, the Clinic filed an amicus brief on behalf of a group of scholars with expertise in the Employee Retirement Income Security Act of 1974, or “ERISA.” The plaintiffs in this case challenged the Department of Labor’s “2022 Investment Duties Rule” (“2022 Rule”), a set of amendments intended to clarify duties imposed on ERISA plan fiduciaries. The plaintiffs argued that the 2022 Rule authorized ERISA fiduciaries to consider environmental, social, and governance factors, even when those factors would not affect risk-adjusted returns. The district court rejected these arguments, including an argument grounded in the major questions doctrine, and granted the government’s motion for summary judgment. Plaintiffs appealed. Our amicus brief in support of the government explained that the 2022 Rule was consistent with longstanding ERISA precedents and with prior agency directives—that is, the 2022 Rule’s “regulatory antecedents.”…

Amicus Briefs Endangered Species Act Takings Water

United Water Conservation District v. United States (Fed. Cir. No. 23-1602)

On December 7, 2023, the Clinic filed an amicus brief on behalf of Natural Resources Law Professors in support of the government. The question in this case was whether an action taken by the National Marine Fisheries Service under the Endangered Species Act amounted to a physical or regulatory taking of United’s water rights. The Clinic’s brief argued that federal management of “instream” flows—flows that have not yet been diverted—should be analyzed as regulatory, not physical, takings. The unique qualities of water and the nature of water rights require flexibility, and the physical takings framework would be too rigid to accommodate changing public needs. However, the regulatory takings framework would allow courts to balance the protection of private property interests with the government’s ability to regulate common resources for the public good –a balance that will become even more important as water becomes increasingly scarce and competing public and private uses of water clash more often.

White Papers Environmental Justice Renewable Energy Siting

Opportunities to Advance Environmental Justice in Renewable Energy Siting

In June 2023, the Clinic produced this report for the Environmental League of Massachusetts (ELM). The report considers how transitioning to clean energy has triggered concerns about the environmental justice implications of siting renewable generation facilities and transmission resources, identifies barriers that might inhibit EJ communities’ participation in the renewable energy siting process and proposes strategies for overcoming these obstacles. The report consists of three parts: 1) Challenges to EJ community participation in the renewable siting process; 2) Potential solutions for EJ engagement that mitigate some of these challenges and suggestions for how advocacy organizations can help to implement these solutions; and 3) Possible solutions to mitigate the tension between the need for expeditious renewable energy siting and the goal of encouraging EJ community participation in the siting process. The report also included a summary handout that outlines the recommendations for states, applicants, and advocates in brief.

Guides Land Trust Tribes/Indigenous

Putting Land in Trust: A Guidebook for Alaska Native Tribes and Individuals

On July 13, 2022, the Clinic and the Native American Rights Fund (NARF) published this guidebook, which informs and guides Alaska Natives about the process of applying to have their privately held land converted to land held in trust for them by the United States. This “fee-to-trust” or “land into trust” process gives tribal members much greater sovereignty and control over land as compared to land they hold privately. The Guidebook explains the relevant statutes and regulations, the benefits and possible drawbacks of having land held in trust, and the details of the application process.

White Papers EFSB Energy Justice Environmental Justice

Opportunities for the Massachusetts Energy Facilities Siting Board to Advance Environmental Justice

This July 2022 paper explores how the Massachusetts Energy Facilities Siting Board (EFSB) can or must use its existing authorities to better incorporate environmental justice (EJ) principles in its reviews of proposed energy facilities. This paper identifies the EFSB’s obligations and opportunities to advance substantive environmental justice—as opposed to procedural environmental justice—under its organic statutes, the Environmental Justice Policy of the Executive Office of Energy and Environmental Affairs, and the Massachusetts Environmental Policy Act as amended by the Climate Roadmap Act of 2021. The paper recommends that the EFSB: 1) Make a “senior-level commitment” to environmental justice; 2) Develop a formal EJ strategy; 3) Issue impact review guidelines that explicitly take into account the distributive effects of proposed projects; 4) Issue regulations for its consideration of cumulative impacts and of projects’ consistency with the EJ policy; and 5) Develop these guidelines, regulations, and strategy pursuant to a process that prioritizes public engagement, especially with EJ communities.

Amicus Briefs Defense of Science

California Rural Legal Assistance Foundation, et al. v. Environmental Protection Agency, et al. (9th Cir. No. 21-71287)

On June 1, 2022, the Clinic submitted an amicus brief on behalf of three leading experts supporting a challenge to an action by the U.S. Environmental Protection Agency (EPA) involving the toxic herbicide paraquat dichloride (often simply called “paraquat”). Specifically, EPA approved paraquat’s use for the next fifteen years under certain conditions, despite the risks paraquat poses to public health.

Comments on Regulations and Other Agency Actions Climate Change

Comments on D.P.U. 20-80, Investigation by the Department of Public Utilities on Its Own Motion into the Role of Gas Local Distribution Companies as the Commonwealth Achieves Its Target 2050 Climate Goals

On May 6, 2022, the Emmett Clinic filed comments to the Massachusetts Department of Public Utilities (DPU) proposing a framework for measuring equity in a way that considers the distribution of both the positive and negative impacts of transitioning to a decarbonized energy system.

Comments on Regulations and Other Agency Actions Clean Air Act

Comments on Proposed Revocation of the 2020 Reconsideration, and Affirmation of the Appropriate and Necessary Supplemental Finding, 87 Fed. Reg. 7624 (Docket ID No. EPA-HQ-OAR-2018-0794)

On April 11, 2022, the Emmett Clinic submitted comments supporting the Environmental Protection Agency’s (EPA) proposal to reaffirm earlier findings underlying the agency’s regulation of mercury and other toxic air pollutant emissions from coal-fired power plants. The comments were filed on behalf of a group of leading scientific experts in the atmospheric transport, aquatic fate, bioaccumulation, human exposures, and health outcomes associated with mercury contamination of the environment.

Comments on Regulations and Other Agency Actions Climate Change

Comments on the Massachusetts Dept. of Energy Resources Straw Proposal for Stretch Code Update and New Specialized Stretch Code

On March 18, 2022, the Clinic submitted comments on the Department of Energy Resources’ Straw Proposal for Stretch Code Update and New Specialized Stretch Code. The comments highlight opportunities to preserve municipal flexibility to address climate change and minimize compliance burdens for municipalities and building owners.

Comments on Regulations and Other Agency Actions Clean Water Act

Comments on Proposed Rule: Revised Definition of ‘‘Waters of the United States,’’ 86 Fed. Reg. 69,372 (Docket ID No. EPA-HQ-OW-2021-0602)

On February 7, 2022, the Emmett Clinic submitted comments on the Biden Administration’s proposal to revise the definition of “the waters of the United States” under the Clean Water Act. The Clinic submitted the comments on behalf of the National Parks Conservation Association (“NPCA”).

Comments on Regulations and Other Agency Actions Defense of Science

Comments on Proposed Rule: National Environmental Policy Act Implementing Regulations Revisions, 86 Fed. Reg. 55,757 (Docket ID No. CEQ-2021-0002)

On November 22, 2021, the Clinic submitted comments to the Council on Environmental Quality (CEQ) supporting its proposed partial reversal of the Trump administration’s weakening of the National Environmental Policy Act (NEPA) implementing regulations.

Comments on Regulations and Other Agency Actions Climate Change

Comments on D.P.U. 20-80, Investigation by the Department of Public Utilities on its Own Motion into the Role of Gas Local Distribution Companies as the Commonwealth Achieves its Target 2050 Climate Goals

In June 2021, the Clinic filed a comment letter on behalf of a group of Massachusetts municipalities and regional planning associations in the Department of Public Utility’s investigation regarding the role of local gas distribution companies in helping the Commonwealth achieve its 2050 net zero climate goal, which includes reducing greenhouse gas emissions by at least 85%.

Comments on Regulations and Other Agency Actions Clean Air Act

Comments on Rescinding the Rule on “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process,” 86 Fed. Reg 26,406 (Docket ID No. EPA-HQ-OAR-2020-0044)

On June 14, 2021, the Clinic submitted comments on behalf of the Chesapeake Bay Foundation and National Parks Conservation Association supporting EPA’s decision to rescind the Trump-era regulation regarding the use of cost-benefit analyses in Clean Air Act rulemakings. The letter supported EPA’s conclusion that the rulemaking was unnecessary, unresponsive to any real problem and duplicative of existing EPA guidance documents.

Amicus Briefs Defense of Science

Sierra Club, et. al v. U.S. Department of the Army Corps of Engineers, et. al (1st Cir. Case No. No. 20-02195)

On February 9, 2021, the Clinic filed an amicus brief on behalf of eleven clinical law professors in support of the appellants in Sierra Club v. U.S. Army Corps of Engineers in the United States Court of Appeals for the First Circuit. The appellants had brought suit claiming the Corps failed to conduct a proper National Environmental Policy Act analysis of environmental harms caused by a proposed transmission line bringing power from Canada to New England. The Clinic’s brief argues that the First Circuit should endorse the serious questions test. The brief highlights that the test has been the most prevalent of various “sliding scale” approaches, which are firmly grounded in the core equitable principles of flexibility, weighing multiple factors against each other, and shaping interim relief to the unique circumstances of each case.

Comments on Regulations and Other Agency Actions Defense of Science

Comments on Proposed Interim Registration Review Decision for Chlorpyrifos and Revised Draft Human Health Risk Assessment, 85 Fed. Reg. 78,849

On February 5, 2021, the Clinic submitted a comment letter urging the Environmental Protection Agency (EPA) to reverse its proposed registration decision for chlorpyrifos and revise the underlying Human Health Risk Assessment (HHRA). The Clinic’s letter calls into question EPA’s decision to use 10% red blood cell acetyl cholinesterase (AChE) inhibition as the basis for the toxicological point of departure, and argues that the HHRA’s refusal to rely on the findings of a key epidemiological study is irrational and contrary to EPA’s longstanding commitment to rely on the best available science.

Amicus Briefs Climate Change

Competitive Enterprise Institute, et al. v. National Highway Traffic and Safety Administration, et al. (D.C. Cir. No. 20-1145)

On January 21, 2021, the Emmett Clinic filed an amicus brief in support of state, local government, and public interest organization petitioners in Competitive Enterprise Institute v. National Highway Traffic and Safety Administration in the U.S. Court of Appeals for the District of Columbia Circuit. The petitioners are challenging the Safer Affordable Fuel Efficient Vehicles Rule (“SAFE Rule”), promulgated by the Environmental Protection Agency (“EPA”) and National Highway Traffic and Safety Administration (“NHTSA”).